Preliminary hearing evidence was insufficient to support adding a conspiracy to commit murder count to the information over defense objection. The Court also affirmed defendant's murder and attempted murder convictions, finding no ineffective assistance of counsel where trial counsel had a strategic reason for permitting the introduction of a co-defendant’s confession and any prosecutorial misstatement regarding premeditation was harmless. Finally, the indeterminate sentence on the attempted murder conviction was proper despite the failure to allege that the attempt was willful and premeditated, as defense otherwise had sufficient notice and the jury properly rendered the required true finding.
Preliminary hearing evidence was insufficient to support adding a conspiracy to commit murder count to the information over defense objection. The Court also affirmed defendant's murder and attempted murder convictions, finding no ineffective assistance of counsel where trial counsel had a strategic reason for permitting the introduction of a co-defendant’s confession and any prosecutorial misstatement regarding premeditation was harmless. Finally, the indeterminate sentence on the attempted murder conviction was proper despite the failure to allege that the attempt was willful and premeditated, as defense otherwise had sufficient notice and the jury properly rendered the required true finding.
The full opinion is available on the court’s website here: https://www4.courts.ca.gov/opinions/documents/B329413.PDF
A magistrate’s Penal Code section 871 dismissal of murder charges based on a legal conclusion did not divest the district attorney of the discretion to recharge them in the information under section 739. In December 2019, defendant was charged with two counts of murder and driving under the influence. The magistrate declined to hold him on the two murder counts due to a lack of probable cause under section 871. Two weeks later, under section 739, the district attorney filed an information recharging the same two murder counts. The court granted defendant’s 995 motion to dismiss the murder counts. The…
A magistrate’s Penal Code section 871 dismissal of murder charges based on a legal conclusion did not divest the district attorney of the discretion to recharge them in the information under section 739. In December 2019, defendant was charged with two counts of murder and driving under the influence. The magistrate declined to hold him on the two murder counts due to a lack of probable cause under section 871. Two weeks later, under section 739, the district attorney filed an information recharging the same two murder counts. The court granted defendant’s 995 motion to dismiss the murder counts. The district attorney then filed a complaint charging defendant with the two counts of murder, and other charges. Defendant moved to dismiss the murder counts under section 1387 (the two-dismissal rule). The trial court found section 1387 did not apply, but granted the motion to dismiss the murder charges reasoning that the prosecutor was not permitted to recharge the murder counts under section 739 because the previous magistrate had made factual findings that defendant did not have the requisite state of mind for the murder charges. Defendant pleaded to the remaining charges. The People appealed. Held: Reversed. If a magistrate holds the defendant to answer a charged offense, the prosecutor, under section 739, can file an information charging defendant with the initial charges and any offense “shown by the evidence taken before the magistrate to have been committed.” However, the district attorney is precluded from recharging dismissed counts where factual findings made by the magistrate are fatal to the allegation that the offense was committed. Here, the magistrate declined to hold defendant to answer to the murder counts, finding he did not have the requisite state of mind under People v. Watson (1981) 30 Cal.3d 290. This was a legal and not a factual conclusion as to the sufficiency of otherwise undisputed evidence presented at the preliminary hearing. As such, the prosecutor was authorized to recharge the murder counts under section 739.
A dismissal under section 871 and a subsequent dismissal under section 995 in the same action constitutes one termination for purposes of the “two-dismissal rule” under section 1387. The two-dismissal rule of section 1387 “bars further prosecution of a felony if the action against the defendant has been twice previously terminated.” However, when the superior court grants a defendant’s section 995 motion to dismiss counts recharged under section 739 despite a magistrate’s previous dismissal of the charges under section 871, section 1387(c)(3) treats the magistrate’s dismissal and the superior court’s dismissal as a single termination. The superior court’s later review of the magistrate’s findings under section 995 is not a separate proceeding: both the magistrate’s dismissal under section 871 and the superior court’s subsequent dismissal under section 995 are successive examinations of the same preliminary hearing in the same action. Therefore, here, the superior court’s dismissal under section 995 of two counts of murder, recharged by information after the magistrate dismissed the counts under section 871 in the same action, was not a bar to further prosecution under the two-dismissal rule.
A motion to set aside the information (Pen. Code, § 995) was the appropriate vehicle to challenge a gang enhancement allegation where the statute was amended by Assembly Bill No. 333 after the preliminary hearing. Petitioner was charged with various crimes and a gang enhancement triggering increased punishment (Pen. Code, § 186.22, subd. (b)(1)). While he awaited trial, AB 333 altered the requirements for imposing the gang enhancement. Petitioner filed a section 995 motion to dismiss the gang allegation, arguing the People failed to present sufficient evidence of the existence of a criminal street gang under amended section 186.22. The…
A motion to set aside the information (Pen. Code, § 995) was the appropriate vehicle to challenge a gang enhancement allegation where the statute was amended by Assembly Bill No. 333 after the preliminary hearing. Petitioner was charged with various crimes and a gang enhancement triggering increased punishment (Pen. Code, § 186.22, subd. (b)(1)). While he awaited trial, AB 333 altered the requirements for imposing the gang enhancement. Petitioner filed a section 995 motion to dismiss the gang allegation, arguing the People failed to present sufficient evidence of the existence of a criminal street gang under amended section 186.22. The trial court denied the motion and, consistent with section 995a, reopened the preliminary hearing to allow the People to proffer additional evidence. Petitioner sought a writ of mandate to compel the trial court to set aside the information. Held: Petition denied. Under section 995, a court must dismiss an information if a defendant has been committed without reasonable or probable cause to believe they are guilty of the charged crime. A section 995 motion can be used to challenge an information when the Legislature subsequently changes the elements of a charge or enhancement. Here, AB 333 constituted a substantial change in the law and rendered the evidence presented at the preliminary hearing insufficient to support the gang enhancement charges. Thus, petitioner properly challenged his information pursuant to section 995.
The trial court properly allowed the prosecution to reopen the preliminary hearing under section 995a and present additional evidence because the defects in the evidence were minor errors of omission. Section 995a confers the court with discretion to reopen a preliminary hearing without dismissing the action if certain prerequisites are met. Specifically, a court may, upon the prosecution’s motion, order a remand for further proceedings to correct “minor errors of omission, ambiguity, or technical defect” in the commitment. (§ 995a, subd. (b)(1).) Here, the People’s failure to present evidence of the gang enhancement that was not required by former section 186.22 at the time of the preliminary hearing constituted an error of omission. These omissions were minor, meaning “comparatively unimportant,” relative to the balance of the already admitted gang-related evidence. Further, the record supported the trial court’s finding that the errors could be corrected expeditiously without substantially rehearing the testimony. The trial court did not abuse its discretion in ordering further proceedings. [Editor’s Notes: (1) The court declined to hold that a section 995a remand is appropriate whenever there is a change in the law between the preliminary hearing and the jury trial, concluding that whether an omission is minor must be determined on a case by case basis. (2) Presiding Justice Tucher concurred in the result, but “would not analyze petitioner’s motion pursuant to the procedures and constraints of sections 995 and 995a.” In Justice Tucher’s view, “the motion is a nonstatutory motion to dismiss pursuant to Estrada, and the taking of supplemental evidence is proper without regard to whether that evidence is ‘minor,’ as that term is used in section 995a(b)(1), or the other requirements of section 995a are met.”]
Assembly Bill No. 333’s changes to the elements of gang-related charges apply retroactively to preliminary hearing proceedings. Mendoza sought a writ of mandamus after the superior court denied his Penal Code section 995 motion to dismiss a charge for active participation in a criminal street gang and the gang enhancements attached to multiple counts. He asserted that the evidence presented at the preliminary hearing, while sufficient at the time of the hearing, was now insufficient in light of the changes to Penal Code section 186.22 by AB 333. The Court of Appeal ultimately issued an order directing the respondent to…
Assembly Bill No. 333’s changes to the elements of gang-related charges apply retroactively to preliminary hearing proceedings. Mendoza sought a writ of mandamus after the superior court denied his Penal Code section 995 motion to dismiss a charge for active participation in a criminal street gang and the gang enhancements attached to multiple counts. He asserted that the evidence presented at the preliminary hearing, while sufficient at the time of the hearing, was now insufficient in light of the changes to Penal Code section 186.22 by AB 333. The Court of Appeal ultimately issued an order directing the respondent to show cause why the petition should not be granted. Held: Petition granted. The People conceded AB 333’s amendments to section 186.22 apply retroactively to the showing necessary to hold Mendoza to answer to the gang-related charges at the preliminary hearing. The People also conceded that the evidence presented at the preliminary hearing was insufficient under the amended law to hold Mendoza to answer. The Court of Appeal agreed with these concessions. However, the parties disagreed on the appropriate remedy. After analyzing Penal Code section 995a, subdivision (b), relevant case law, and the preliminary hearing evidence, the court agreed with the People and concluded the prosecutor may move to reopen the preliminary hearing proceedings to present additional evidence on the amended elements of the gang-related charges or proceed without them. [Editor’s Note: The Court of Appeal noted that no other case has addressed whether new laws that change the elements of an offense or enhancement to a defendant’s benefit apply retroactively to the showing necessary to hold a defendant to answer to the related charge or enhancement.]
The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/documents/F084354.PDF
Magistrate erred in dismissing torture-murder special circumstance where evidence showed a rational ground for concluding defendant had the intent to kill. Defendant was charged with the premeditated murder of his 13-week-old son (Pen. Code, § 187, subd. (a)), and with the special circumstance that the murder was intentional and involved infliction of torture (§ 190.2, subd. (a)(18))). The magistrate found sufficient evidence to hold defendant as to the murder charge but not as to the special circumstance, reasoning that the evidence did not establish how the victim died or whether defendant had the intent to kill at that point. The…
Magistrate erred in dismissing torture-murder special circumstance where evidence showed a rational ground for concluding defendant had the intent to kill. Defendant was charged with the premeditated murder of his 13-week-old son (Pen. Code, § 187, subd. (a)), and with the special circumstance that the murder was intentional and involved infliction of torture (§ 190.2, subd. (a)(18))). The magistrate found sufficient evidence to hold defendant as to the murder charge but not as to the special circumstance, reasoning that the evidence did not establish how the victim died or whether defendant had the intent to kill at that point. The People filed an information that included the torture-murder special circumstance. At the section 995 hearing, the trial court believed the evidence showed defendant had an intent to kill and an intent to torture but struck the special circumstance, believing it was not allowed to substitute its judgment as to the weight of the evidence for the magistrate’s judgment. The People petitioned for writ of mandate. Held: Granted with directions to set aside the order granting the section 995 motion and to issue a new order denying the motion. The torture-murder special circumstance requires both an intent to kill and an intent to torture. It applies where the death involved the infliction of torture, regardless of whether the acts constituting the torture were the cause of death. Here, there was ample evidence to support the special circumstance. Defendant inflicted extreme, extensive, and repeated injuries on a baby. He had a motive to kill, did not proceed with urgency when he took the victim to the hospital, and falsified stories about how the victim was injured, indicating consciousness of guilt. Because there was a rational ground for inferring defendant had the intent to kill when he tortured the victim, dismissal of the special circumstance was erroneous as a matter of law. Since the magistrate did not make any factual findings requiring deference, the trial court should have conducted an independent review of the evidence. [Editor’s Note: Presiding Justice Ramirez dissented, observing that the magistrate determined there was an absence of “intent to kill,” and there was no basis to disregard this factual finding.]
Because defendant's Welfare and Institutions Code section 5150 hold did not automatically toll the 60-day time period for his preliminary hearing, the information in his case must be set aside. Defendant was charged with a felony in a complaint and was arraigned. He did not waive his right to have the preliminary hearing commence within 60 days. However, he did not appear on the date set for the hearing because he was in custody at a hospital for a mental health evaluation pursuant to section 5150. The preliminary hearing was ultimately held more than 60 days after…
Because defendant's Welfare and Institutions Code section 5150 hold did not automatically toll the 60-day time period for his preliminary hearing, the information in his case must be set aside. Defendant was charged with a felony in a complaint and was arraigned. He did not waive his right to have the preliminary hearing commence within 60 days. However, he did not appear on the date set for the hearing because he was in custody at a hospital for a mental health evaluation pursuant to section 5150. The preliminary hearing was ultimately held more than 60 days after the arraignment. Defendant's motions to dismiss the complaint and set aside the information for failure to hold the preliminary hearing within 60 days of arraignment were denied. He filed a petition for writ of prohibition or other appropriate relief in the Court of Appeal. Held: Petition granted. In pertinent part, Penal Code section 859b requires dismissal of a complaint if the preliminary hearing is set or continued more than 60 days from the date of arraignment, unless the defendant personally waives his right to a preliminary hearing within 60 days. There is no good-cause exception to the 60-day rule and no statutory provision that automatically tolls the 60-day time period for defendants who are receiving a mental health evaluation. The People argued that the 60-day period was tolled under Welfare and Institutions Code section 4011.6, which provides that the time a prisoner spends in a facility for a section 5150 hold shall not be computed in any statutory time requirements for arraignment or trial in any pending criminal or juvenile proceedings if the person in charge of the facility determines that arraignment or trial would be detrimental to the well-being of the prisoner. Without deciding whether section 4011.6 provides for tolling of the 60-day period for preliminary examinations, the Court of Appeal concluded the record did not support tolling in this case. There was no evidence that the person in charge of the hospital determined that arraignment or trial would be detrimental to defendant before the 60-day period ended.
The full opinion is available on the court's website here: https://www.courts.ca.gov/opinions/archive/A157306.PDF
Dismissal of securities violation counts (Corp. Code, §§ 25401, 25540, subd. (b)) proper because promissory note did not qualify as a "security" under the Howey test. Black approached Knarr with a real estate investment opportunity in Idaho. In a promissory note, Knarr agreed to pay Black $124,456 and Black promised a percentage of the profits or a portion of the property and guaranteed Knarr that he could get his money back plus 10% interest at any time. The promissory note was revised a number of times. Black was never able to make the real estate deal happen and he failed…
Dismissal of securities violation counts (Corp. Code, §§ 25401, 25540, subd. (b)) proper because promissory note did not qualify as a "security" under the Howey test. Black approached Knarr with a real estate investment opportunity in Idaho. In a promissory note, Knarr agreed to pay Black $124,456 and Black promised a percentage of the profits or a portion of the property and guaranteed Knarr that he could get his money back plus 10% interest at any time. The promissory note was revised a number of times. Black was never able to make the real estate deal happen and he failed to repay Knarr. Black was charged with a number of offenses, including multiple counts of using false statements in the offer or sale of a security (Corp. Code, §§ 25401, 25540, subd. (b)). He filed a Penal Code section 995 motion to dismiss two of the securities counts on the basis that the promissory note was a loan and did not qualify as a "security." The trial court ultimately agreed and granted the motion. The People appealed. Held: Affirmed. Here, the People argued the promissory note was a security under the test set forth in S.E.C. v. Howey Co. (1946) 328 U.S. 293, 301, which asks "whether the scheme involves an investment of money in a common enterprise with profits to come solely from the efforts of others." After examining the relevant authorities, the Court of Appeal determined the promissory note was not a security. The promissory note was "an individually negotiated, one-on-one transaction," which distinguishes it from most securities that are offered widely or traded publicly. Furthermore, the guarantee in the promissory note that Knarr would be repaid from Black's personal property whether the business prospered or not was a feature that made it more like a loan than a profit sharing arrangement typical of securities.
The full opinion is available on the court's website here: http://www.courts.ca.gov/opinions/documents/H043360.PDF
Trial court erred by dismissing a complaint where prosecutor, without giving notice, requested a continuance of the preliminary hearing to a date within 10 court days of the defendant's plea. Smith with charged with possessing heroin. He invoked his right to a preliminary hearing within 10 court days of his not guilty plea pursuant to Penal Code section 859b. The hearing was set for March 6, 2014 and the parties and court agreed that March 10, 2014 was the tenth day. On March 6, the prosecutor made an oral request for a continuance to March 10 under Penal Code section…
Trial court erred by dismissing a complaint where prosecutor, without giving notice, requested a continuance of the preliminary hearing to a date within 10 court days of the defendant's plea. Smith with charged with possessing heroin. He invoked his right to a preliminary hearing within 10 court days of his not guilty plea pursuant to Penal Code section 859b. The hearing was set for March 6, 2014 and the parties and court agreed that March 10, 2014 was the tenth day. On March 6, the prosecutor made an oral request for a continuance to March 10 under Penal Code section 1050 because her office was having issues with the drug lab and the results were not finished. The court denied the prosecutor's request and granted a motion to dismiss the complaint for failing to provide notice at least two days prior to the request for the continuance. The People appealed. Held: Reversed. Under section 1050, a party must file a written notice of a request to continue a matter at least two days prior to commencement of the hearing or proceeding involved. (Pen. Code, § 1050, subd. (b).) However, section 1050, subdivision (k) specifically states that the two-day notice rule does not apply when the preliminary hearing is set on a date less than 10 court days from the date of the defendant's arraignment on the complaint and the prosecution or the defendant moves to continue the preliminary hearing to a date not more than 10 court days from the date of the arraignment. Here, the court "construe[d] the 10-day period referenced in subdivision (k) to run from the date of either arraignment or plea, consistent with the language of section 859b." Under this construction, Smith's case falls under subdivision (k). Because Smith did not demonstrate any form of prejudice, it was an abuse of discretion to deny the prosecution's continuance request and order the charges against him dismissed.
The full opinion is available on the court's website here: http://www.courts.ca.gov/opinions/documents/A141407.PDF
Welfare and Institutions Code section 707, subdivision (d) allows certain juveniles accused of specified offenses to be charged directly in criminal court by grand jury indictment. A grand jury indicted Arroyo, a juvenile, and six codefendants for various gang-related offenses. The grand jury also found reasonable cause to believe that Arroyo came within the provisions of section 707(d)(4), which permits charges against a juvenile to be filed directly in criminal court if certain criteria are met. Arroyo demurred to the indictment on the ground that section 707(d)(4) requires the prosecution to proceed by way of preliminary hearing and information when…
Welfare and Institutions Code section 707, subdivision (d) allows certain juveniles accused of specified offenses to be charged directly in criminal court by grand jury indictment. A grand jury indicted Arroyo, a juvenile, and six codefendants for various gang-related offenses. The grand jury also found reasonable cause to believe that Arroyo came within the provisions of section 707(d)(4), which permits charges against a juvenile to be filed directly in criminal court if certain criteria are met. Arroyo demurred to the indictment on the ground that section 707(d)(4) requires the prosecution to proceed by way of preliminary hearing and information when filing criminal charges against a minor in adult court. The trial court sustained the demurrer and dismissed Arroyo from the indictment. The People appealed and the Court of Appeal reversed. The Supreme Court granted review. Held: Affirmed. Section 707 gives prosecutors discretionary authority to file charges against minors directly in criminal court for specified offenses under specified circumstances. It provides that, in conjunction with a preliminary hearing, a magistrate shall make a finding that reasonable cause exists to believe that the minor comes within section 707(d)(4). However, it does not specify that a prosecution must proceed by preliminary hearing and information. Instead, the statute also provides that in a case where an "accusatory pleading" has been filed against a minor in a criminal court, "the case shall then proceed according to the laws applicable to a criminal case." An "accusatory pleading" includes a grand jury indictment and prosecutions commenced by grand jury indictment normally proceed "according to the laws applicable to a criminal case." As a result, section 707(d)(4) does preclude use of a grand jury indictment to initiate a prosecution against a minor in criminal court. In this situation, the grand jury must make the reasonable cause determination instead of the magistrate. [Editor's Note: The court also disapproved People v. Superior Court (Gevorgyan) (2001) 91 Cal.App.4th 602, to the extent it holds section 707(d)(4) requires that the prosecution of a juvenile by discretionary direct filing in a court of criminal jurisdiction be initiated by information. Justice Liu filed a concurring opinion, joined by Justice Kruger, disagreeing with dictum in the majority opinion stating that a grand jury's reasonable cause finding may be, but does not need to be, express.]
The full opinion is available on the court's website here: http://www.courts.ca.gov/opinions/documents/S219178.PDF
Prosecution may obtain an indictment charging defendant with arson (Pen. Code, § 451) despite the fact he was already held to answer for illegal burning (Pen. Code, § 452). In July 2012, Mason threw an illegal firework into a swimming hole. It floated on the surface of the water, then exploded, shooting sparks into the air. Some of the sparks landed on dry brush and ignited a forest fire that burned 2,650 acres. He was initially charged by complaint with arson with enhanced penalties and the lesser offense of unlawful burning. At the preliminary hearing the arson charges were dismissed…
Prosecution may obtain an indictment charging defendant with arson (Pen. Code, § 451) despite the fact he was already held to answer for illegal burning (Pen. Code, § 452). In July 2012, Mason threw an illegal firework into a swimming hole. It floated on the surface of the water, then exploded, shooting sparks into the air. Some of the sparks landed on dry brush and ignited a forest fire that burned 2,650 acres. He was initially charged by complaint with arson with enhanced penalties and the lesser offense of unlawful burning. At the preliminary hearing the arson charges were dismissed and he was held to answer on the lesser offense. The People did not file an information; instead they convened a grand jury and obtained an indictment charging Mason with arson. Mason moved to set aside the indictment (Pen. Code, § 995) on numerous grounds, including that the prosecution was prohibited from proceeding by indictment on the arson charges because he was still held to answer on the unlawful burning charge. When his motion was denied, Mason sought writ relief. Held: Petition for writ of prohibition or mandate denied. The prosecution may elect to start a prosecution over either by a new complaint or by indictment following a magistrate's order of dismissal. (People v. Uhlemann (1973) 9 Cal.3d 662, 664.) Here, the magistrate's failure to hold Mason to answer on the arson charges is the equivalent of a dismissal pursuant to section 871. (People v. Superior Court (Martinez) (1993) 19 Cal.App.4th 738, 744.) Additionally, the case was effectively dismissed because the time for filing an information had run, the prosecution represented it would not be filing an information, and Mason was not in custody. Even assuming the unlawful burning charge was not dismissed, the prosecution could proceed by way of indictment prior to dismissal of the complaint. (People v. Carrington (2009) 47 Cal.4th 145.)
Prosecutor need not affirmatively inform grand jury that a defendant was not held to answer on a charge at the preliminary hearing. Mason also argued the prosecutor failed to inform the grand jury that he was not held to answer on at the preliminary hearing on the arson charges, that the charges were dismissed, and that he was only held to answer on the lesser offense of unlawful burning. However, the grand jury was provided a transcript of the preliminary hearing and hence could have determined these things. According to the Court of Appeal, "[t]hat is sufficient."
Prosecutor had no duty to instruct grand jury on lesser included offense absent an explicit request. The grand jury was not instructed on the lesser included offense of unlawful burning. Mason also argued that this was error. The Court of Appeal disagreed. The People have no sua sponte duty to instruct the grand jury on a lesser included offense unless the grand jury "specifically requests" an instruction on lesser included offenses. (Cummiskey v. Superior Court (1992) 3 Cal.4th 1018.) Here, three jurors asked questions showing concern about the meaning of the instruction on arson and its application to Mason, but none of the comments suggested that they were specifically requesting an instruction on lesser included offenses. Because there was no specific request, the prosecutor had no duty to instruct.
Mens rea for arson does not require an intent to cause a fire. The grand jury was instructed that it did not need to find that Mason intended to cause a forest fire. Instead, the grand jury was instructed that an act causes burning of forest land if the burning was the direct, natural, and probable consequence of the act. Mason argued this misstated the mens rea for arson. The Court of Appeal disagreed. Although section 451 provides that a person is guilty of arson if he or she "willfully and maliciously sets fire to or burns or causes to be burned . . . forest land, or property," People v. Atkins (2001) 25 Cal.4th 76 and In re V.V. (2011) 51 Cal.4th 1020, clarified that this does not require an intent to burn the relevant property; all that is needed is an intent to do an act, the direct, natural, and highly probable consequences of which is the burning of a relevant property. Thus, the grand jury was properly instructed. The Court of Appeal also rejected Mason's challenges to the sufficiency of the evidence. [Editor's Note: Justice Blease dissented to express his disagreement with Atkins.]